National Review Article - Michael Mukasey

August 10,
2009

Brainy Bronx Kid against Terror - A conversation with Judge Michael B.
Mukasey, George W. Bush's last attorney general

By: Jay Nordlinger

Michael Mukasey is a modest man, not a horn-tooter, and you may have missed
his tenure as attorney general. He served from November 2007 to January
2009. In other words, he was President George W. Bush's last attorney
general (succeeding John Ashcroft and Alberto Gonzales). Mukasey is not
a great talker to the press, but he has plenty to say -- particularly
about how America is coping, or should cope, with what used to be known
as the War on Terror. (These days, the government prefers "Overseas
Contingency Operations" -- actually, without the capital letters.)

Mukasey is back in his hometown, New York, where he is a partner at the
law firm of Debevoise & Plimpton. That is in Manhattan. He did not
start out in Manhattan, but rather in the Bronx. He was born there in
1941, and grew up in a mixed neighborhood: Jewish and Italian. Talking
in his office, I ask whether he still feels like a Bronx kid. He says,
"I am a Bronx kid. But one who always wanted to live in Manhattan."
That was a sign, he says, that "you had arrived."

Mukasey is Jewish, his father an immigrant from Belarus. Was that name,
Mukasey, ever mistaken for Irish? "Oh, yeah: by the parents of several
Jewish girls I went out with." The name, incidentally, is pronounced
-- at least by this Mukasey -- "Myoo-KAY-zee."
He went to Columbia College, where he majored in American history. He
was editorials editor for the Columbia Daily Spectator. And what were
his politics? "Oh, God, pretty liberal, I think." During Mukasey's
confirmation hearings for attorney general, Sam Brownback, the conservative
senator from Kansas, pulled out a specimen from the past. It was "one
of those sneering editorials," says Mukasey, "that talked about
how wrong it was to prosecute some doctor for performing abortions, how
it was none of anybody's business except his and the mothers', and this,
that, and the other -- the usual arguments." And "the only conservative
editorial I remember writing had to do with the Cuban Missile Crisis,
and how Kennedy was right to draw the line."

Mukasey voted for Humphrey in 1968. He did not vote for the Democratic
nominee four years later (McGovern). That is a familiar story, told by
many a Democrat-turned-Republican.

Mukasey went to Yale Law School, where one of his professors was Robert
Bork: "a commanding presence," says Mukasey. Some 20 years later,
Bork underwent confirmation hearings for the Supreme Court, ultimately
being denied a place on that court. How did Mukasey find the hearings?
"Stomach-turning."

After law school, he worked in New York, serving as an assistant U.S.
attorney, as well as practicing privately. His clients included at least
two notorious characters: Roy Cohn and Claus von Bülow. Mukasey became
close to Rudolph Giuliani, and, in fact, would swear him in both times
as mayor -- once in Mukasey's own apartment.

Mukasey was a judge then, of course. In 1988, Reagan appointed him to
the federal court in the Southern District of New York. While on the bench,
Mukasey presided over several cases connected to the jihad -- to what
some would later call "Islamofascism." Most prominently, he
oversaw the trial of Omar Abdel Rahman, better known as the "blind
sheikh" -- a man who was determined to bomb any number of important
buildings in New York. For a period, Mukasey had a detail of federal marshals,
owing to the potential threats against him.
As you can imagine, he has decided views about the role of law enforcement
in the War on Terror -- a subject of great controversy, and a dividing
point between "conservatives" and "liberals," to use
broad terms. He remembers an early terror trial, some years before 9/11
-- not a trial he was presiding over. "I was walking back from lunch
with one of my colleagues, the late John Sprizzo. And there were all of
these marshals with their long arms, vests, and so on. And Sprizzo says,
'What the hell are we doing here? This isn't a law-enforcement problem,
this is a military problem.' . . . I thought this was a stunning insight."

Mukasey says that law enforcement ought to have a "support role,"
but not a "principal role" -- such as the military or intelligence
agencies should have.

He resigned from the federal bench in 2006, because, he explains, "the
ends didn't meet." In other words, "I had to make some hard
choices about how my family was going to live." He went back into
private practice, after his 18-year judgeship. I ask whether the United
States should pay its federal judges more. He says, "Probably. But
should salary be an attraction? I don't know about that. And if we pay
them more, we ought to select them more carefully."

In the fall of 2007, President Bush turned to Mukasey to ask him to be
attorney general. He was confirmed, of course: but a lot of Democrats
voted against him. Forty of them. Seldom has an AG nominee had so many
votes against him. Did that sting? "No," says Mukasey. The Democrats'
main complaint was that Mukasey would not say whether he regarded waterboarding
as torture, not being privy to the full range of facts that would be necessary
to form such a judgment. Interrogators' careers were involved. Plus, why
tell the enemy what you are prepared and not prepared to do? Mukasey says,
"I remember thinking at the time, 'Okay: I got a high-class problem.
If I get confirmed, I get to be attorney general of the United States.
If I don't get confirmed, I get to go back to New York and make money
and be known as the guy who was nominated and didn't make it'" for
reasons of principle.

There was also this wrinkle: Days before his confirmation hearings, he
had a scare concerning prostate cancer. Tests indicated that he had the
disease. That made Senator Leahy et al. a little less daunting -- a little
less important. In the end, he did not have cancer, and he was confirmed
as AG into the bargain.

He arrived at Justice "at a particularly stressful time for the department,"
he says. "Reputedly, morale was low, there was a fog of scandal,
and so on and so forth." His idea was "to get people doing what
they do on a day-to-day basis, making decisions based on the law, and
not worrying about distractions," while he himself kept a relatively
low profile -- letting those who accomplished something take credit for
it, rather than "going out and being the one to announce the big
arrest or whatever."

Day in, day out, he dealt with the myriad legal issues surrounding the
War on Terror. A familiar charge from the Left -- and sometimes from a
particular Right -- is that Bush & Co. sacrificed civil liberties
for the sake of national security. This is nonsense, says Mukasey. And
isn't it interesting that "people who complain about intrusion on
civil liberties are not complaining about what you go through at the airport"?
"I've never heard someone who describes himself as a liberal complain
about what's going on at the airport. They hear about wiretapping and
electronic eavesdropping and so on, and they think the government is spying
on them or their friends or something." Mukasey asks people to consider
the unreason of this.

"Worldwide, there are 12,000 FBI agents" -- not so large a number.
And there are only so many who work in the CIA or related agencies. "The
nightmare of all those people is exactly the same: that there's going
to be another September 11th. The one thing they want to prevent is another
strike. All those people go to work every day petrified at the thought"
that another attack could occur. "Given that, what use do they have
for listening in on your political conversations?" Besides which,
"people are saying the most noxious things about people they disagree
with" -- including George W. Bush, including Michael Mukasey. They
are not shy. And they flatter themselves that "they're doing something
daring or brave."

Mukasey has a dim view of the New York Times and its exposure of clandestine
programs. Bush called such exposure "disgraceful"; Mukasey agrees.
He also says that exposure of this type does some unknowable degree of
harm: because intelligence surely dries up. Asked what the role of the
press should be in the War on Terror, he says that the press should take
an adversarial position against the government when it must, but not be
"reflexively adversarial." And "if you want to take an
adversarial position against someone, go take an adversarial position
against the Saudis. Do something really brave, like going to Riyadh to
report on how women lead double lives," or "going to Syria to
report on anything."

How about Guantanamo Bay, that symbol of draconian, un-American American
conduct? "It compares favorably with a medium-security federal detention
facility in the United States." And "the guards there are subject
to unbelievable abuse. They wear plastic face shields whenever they have
to go in or near a cell, because of what's thrown at them: feces and urine
and cocktails of various bodily fluids." Journalists are free to
go down there and inspect Gitmo for themselves. "But all of a sudden
people develop budgetary problems or something" when such a trip
is proposed.

Like most people who have held key positions in the War on Terror, Mukasey
warns against complacency. He also says that no one should underestimate
the ability of jihadists to do innocent people harm. Imagine that the
9/11 plotters had been exposed and caught, before carrying out their attacks.
The reaction would have been "scoff, mock, scoff, mock," says
Mukasey. "Some guy in a cave thinks a bunch of guys with box cutters
are gonna get on airplanes and bring down buildings? Oh, come on. That's
absurd. Grandiosity!"

With the former vice president, Dick Cheney, Mukasey believes that certain
of President Obama's policies have increased the risk to the United States.
Take what is happening in the intelligence agencies. There is a "demoralization,"
a new mindset that makes people "much more wary than they were before,
much less inclined to get into this work in the first place, much more
inclined to get out when they can, and much less inclined to push"
-- to push for answers to terrorist puzzles. These people walk very gingerly,
feeling they may be investigated or even prosecuted. This is also an era
in which we are reading terrorists, apprehended on some foreign battlefield,
Miranda rights. I remark to Mukasey that some of us find this "demented."
Yes, "demented," he says -- "and Obama himself once scoffed
at the idea of doing this."
Mukasey's view of the president he worked for? "A man very good at
making decisions, not as good as he should have been, or as one would
have hoped he would be, at making the case for those decisions."
In his personal dealings with Bush, "I found him very insightful,"
and also possessed of "a nearly infallible bullshit detector. I would
not ever want to try to sail one past him, or go into a meeting unprepared."
Speaking of his time in Washington more broadly, Mukasey says that "my
experience left me very grateful that the people in the legislature do
what they do and that the people in the executive do what they do, because
if the people in the legislature did what the people in the executive
do, all would be lost." An elaboration: "If all you do for a
living is pronounce, you can strike any pose you want, as long as it sounds
good." In the executive branch, "you have to be serious, and
make decisions that affect events and lives." This responsibility
should sober anyone up.

In the course of our interview, I notice framed photos behind Mukasey's
desk. They are not of family. One is of Orwell. Another is of Robert Jackson,
the Supreme Court justice who served from 1941 until his death in 1954.
(He had also been attorney general.) In fact, there are two pictures of
Jackson: a portrait, and one of him in action as prosecutor at Nuremberg.
These photos obviously say a lot about what Mukasey believes. Orwell described
his twin concern as "law and liberty." Taking off from that,
the historian Robert Conquest describes himself as neither a conservative
nor a liberal but one concerned with "a law-and-liberty culture."
As for Jackson, he is probably best remembered as the guy who said that
the Bill of Rights was not a "suicide pact."

Mukasey is gravely concerned about the state of things today, but he wants
to put his words carefully, not alarmingly. He says, "I'm not eager
to find out how much this country can take" -- how much disunity,
for example, and how much casualness about assorted threats.
Back when Democrats were holding up Mukasey's nomination, Bush summoned
reporters to the Oval Office to complain that the judge was "not
being treated fairly." He also wanted to point out that some of us
had "lost sight of the fact that we're at war." Mukasey has
not lost sight, and, although he is reluctant to make a public splash,
maybe he should -- he is a man for these times, whether in power or not.